Point of Law : Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with award dated 15.9.2015, passed by sole arbitrator in respect of dispute between the parties relating to the “work of construction of Bus Stand at Chamba including Water Supply and Sanitary installation”, whereby a sum of Rs. 39.71 Lakh alongwith interest at the rate of 7% per annum from the date of award till realization, came to be awarded in favour of the respondent/claimant, besides awarding Rs. 1.50 Lakh as litigation cost, the petitioner has approached this Court in the instant proceedings under S.34 of the Arbitration and Conciliation Act, 1996.

2. Briefly stated the facts of the case are that the work of construction of Bus Stand at Chamba including Water Supply and Sanitary installation was entrusted to HIMUDA by the Chief Executive Officer, Himachal Pradesh Bus Stand Management and Development Authority, Shimla-3. The new bus stand was to be constructed on the site, where District Jail Chamba was situated. Tender documents were invited on 30.5.2011 and work was allotted to the respondent/claimant being lowest tenderer on 18.7.201 vide award letter dated 18.7.2011.

3. Pursuant to awarding of work in favour of the respondent, both the parties entered into agreement No. 24 of 2011-2012, whereby work was to be completed within 18 months i.e. on or before 2.2.2013. Since the site on which construction of bus stand was to be raised was not made available to the respondent-claimant, he was unable to start the construction. Since after awarding of work in his favour, respondent had already collected material and had arranged for machinery on the spot, he suffered losses on account of delay in commencement of the work, which was neither cancelled by the Department nor site other than District Jail was ever allotted to the respondent to start the work. On account of delay in handing over the site to the respondent, dispute arose inter se parties and as such, respondent invoked arbitration clause of the agreement requesting the petitioner to appoint an arbitrator. Since the petitioner failed to appoint any arbitrator, respondent approached this court under S.11 of the Act for appointment of an arbitrator and this court, having taken note of the arbitration clause, appointed Shri Kapil Dev Sood, learned Senior Advocate as arbitrator to adjudicate the dispute inter se parties

4. Learned Arbitrator entered into reference and on the basis of pleadings as well as evidence collected on record by parties, held the respondent entitled to Rs. 39.71 Lakh on account of loss of profit. Besides this, learned arbitrator also directed the petitioner to return the FDR amounting to Rs.4,11,100/- furnished by the respondent as earnest money.

5. Being aggrieved and dissatisfied with aforesaid award passed by learned Arbitrator, petitioner has approached this court in the instant proceedings filed under S. 34 of the Arbitration and Conciliation Act, praying therein to set aside aforesaid award.

6. Primarily, the grounds as have been raised in the instant petition for challenging award are qua factual aspects of the matter and there is no challenge to award on the grounds as are available to the objector under S.34 of the Arbitration and Conciliation Act. In nutshell grounds as have been taken by petitioner are that learned Arbitrator while passing award has failed to appreciate the facts as well as material available before him in its right perspective, as a consequence of which, finding contrary to record and to the detriment of the petitioner have come to the fore.

7. It has been stated in the petition that since petitioner successfully proved on record that during period qua which respondent has claimed loss of profit, respondent was working on other site, there was no occasion for the learned Arbitrator to award amount on account of loss of profit. Apart from above another ground, as has been taken is that delay in execution of contract was on account of delay in commencement of work by